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    1) Nelson Barham pled guilty to conspiracy to launder money from cocaine distribution and permitting cocaine storage and use in his business. 2) Barham claimed there was an insufficient factual basis for his guilty plea to the money laundering charge because he denied knowing the money came from drugs. 3) However, the court found the plea agreement, presentence report, and Barham's testimony provided enough evidence that he knew the transaction was to conceal drug money. 4) The court also denied Barham's motion to withdraw his guilty plea, finding he did not credibly assert his innocence or show the plea was involuntary. The appeals court affirmed both rulings.

    Original Description:

    Filed: 2011-01-21 Precedential Status: Non-Precedential Docket: 10-4308

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    1) Nelson Barham pled guilty to conspiracy to launder money from cocaine distribution and permitting cocaine storage and use in his business. 2) Barham claimed there was an insufficient factual basis for his guilty plea to the money laundering charge because he denied knowing the money came from drugs. 3) However, the court found the plea agreement, presentence report, and Barham's testimony provided enough evidence that he knew the transaction was to conceal drug money. 4) The court also denied Barham's motion to withdraw his guilty plea, finding he did not credibly assert his innocence or show the plea was involuntary. The appeals court affirmed both rulings.

    Copyright:

    Public Domain
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    25 views5 pages

    United States v. Barham, 4th Cir. (2011)

    Uploaded by

    Scribd Government Docs
    1) Nelson Barham pled guilty to conspiracy to launder money from cocaine distribution and permitting cocaine storage and use in his business. 2) Barham claimed there was an insufficient factual basis for his guilty plea to the money laundering charge because he denied knowing the money came from drugs. 3) However, the court found the plea agreement, presentence report, and Barham's testimony provided enough evidence that he knew the transaction was to conceal drug money. 4) The court also denied Barham's motion to withdraw his guilty plea, finding he did not credibly assert his innocence or show the plea was involuntary. The appeals court affirmed both rulings.

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    of 5

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 10-4308

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    NELSON EDDY BARHAM, JR.,
    Defendant - Appellant.

    Appeal from the United States District Court for the District of
    South Carolina, at Columbia.
    Cameron McGowan Currie, District
    Judge. (3:09-cr-00309-CMC-2)

    Submitted:

    December 16, 2010

    Decided:

    January 21, 2011

    Before KING, KEENAN, and WYNN, Circuit Judges.

    Affirmed by unpublished per curiam opinion.

    Russell W. Mace, III, THE MACE FIRM, Myrtle Beach, South


    Carolina, for Appellant.
    William N. Nettles, United States
    Attorney, James C. Leventis, Jr., Assistant United States
    Attorney, Columbia, South Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Nelson Eddy Barham, Jr., was convicted, following his
    guilty

    plea,

    unlawful
    U.S.C.

    of

    conspiracy

    activity
    1956(h)

    (cocaine
    (2006)

    to

    launder

    distribution),
    (Count

    the

    proceeds

    of

    an

    in

    violation

    of

    18

    One),

    and

    knowingly

    and

    intentionally permitting the storage, distribution, and use of


    cocaine in his place of business, in violation of 21 U.S.C.
    856(a)(2) (2006) (Count Eight).
    that there

    was

    an

    insufficient

    On appeal, Barham asserts

    factual

    basis

    to

    support

    his

    guilty plea to Count One and that the district court abused its
    discretion in denying his motion to withdraw his guilty plea.
    For the following reasons, we reject these arguments and affirm.
    Barhams indictment stemmed from his involvement in a
    money

    laundering

    transaction.

    Acting

    on

    behalf

    of

    Robert

    Garrick, Barhams business partner and an admitted drug dealer,


    Barham negotiated for Garrick to purchase a strip club.

    Garrick

    used drug proceeds to pay one of the club owners $190,000.00 in


    cash.

    This aspect of the sale went unreported.

    Barham contends

    there was an insufficient factual basis as to Count One because,


    during the Federal Rule of Criminal Procedure 11 colloquy, he
    denied

    knowing

    that

    the

    purchase

    money

    came

    from

    cocaine

    distribution or that the intent of the transaction was to avoid


    various reporting requirements.

    Rule

    11(b)(3)

    provides

    that

    [b]efore

    entering

    judgment on a guilty plea, the court must determine that there


    is a factual basis for the plea.

    As we have explained, [t]he

    rule is intended to ensure that the court make clear exactly


    what a defendant admits to, and whether those admissions are
    factually sufficient to constitute the alleged crime.
    States

    v.

    Mastrapa,

    509

    F.3d

    652,

    (internal quotation marks omitted).

    659-60

    (4th

    United

    Cir.

    2007)

    In making a Rule 11(b)(3)

    determination, the district court has broad discretion and need


    not conduct a trial; moreover, the court is not constrained to
    rely only on the plea colloquy, but may conclude that a factual
    basis exists from anything that appears on the record.

    United

    States v. Ketchum, 550 F.3d 363, 366-67 (4th Cir. 2008); see
    also United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991)
    (noting that Rule 11 does not require the district court to
    establish through its colloquy that a factual basis exists for
    the

    plea).

    satisfied

    The
    that

    district

    there

    is

    court
    a

    need

    sufficient

    only

    be

    factual

    subjectively
    basis

    for

    conclusion that the defendant committed all of the elements of


    United States v. Mitchell, 104 F.3d 649, 652 (4th

    the offense.
    Cir. 1997).
    We

    have

    carefully

    reviewed

    the

    record

    and

    conclude

    there was ample support for the district courts factual basis
    determination.

    First

    and

    foremost,
    3

    in

    his

    plea

    agreement,

    Barham

    stipulated

    to

    knowing

    or

    believing

    that

    the

    purchase

    money was the proceeds of an offense involving the distribution


    of a controlled substance.
    Barham

    challenge

    this

    At no point in the proceedings did

    stipulation.

    Moreover,

    Barhams

    presentence report (PSR) detailed his knowledge of the source


    of the laundered funds, and Barham did not pursue his objection
    to that portion of the PSR.

    Further, Barhams testimony at the

    Rule 11 hearing squarely belies his contention that there was


    insufficient support for the courts finding that he knew the
    purpose of the transaction was to conceal the funds and to avoid
    reporting requirements.

    Accordingly, we hold the district court

    properly determined there was a factual basis for the guilty


    plea as to Count One.
    Barham

    also

    See DeFusco, 949 F.2d at 120.


    maintains

    the

    district

    denying his motion to withdraw his plea.

    court

    erred

    by

    We review a denial of

    a motion to withdraw a guilty plea for an abuse of discretion.


    United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).
    In determining whether the trial court abused its discretion in
    denying such

    motion,

    this

    court

    considers

    the

    six

    factors

    articulated in United States v. Moore, 931 F.2d 245, 248 (4th


    Cir. 1991).

    These factors include whether:

    (1) the defendant

    has offered credible evidence that his plea was not knowing or
    not voluntary; (2) the defendant has credibly asserted his legal
    innocence; (3) there has been a delay between the entering of
    4

    the plea and the filing of the motion; (4) the defendant has had
    close assistance of competent counsel; (5) the withdrawal will
    cause prejudice to the government; and (6) the withdrawal will
    inconvenience the court and waste judicial resources.

    Id.

    We have reviewed the district courts analysis of and


    findings on this issue, and conclude the court did not abuse its
    discretion

    in

    denying

    Barhams

    motion.

    Barham

    offered

    no

    evidence that his plea was not knowing or voluntary, and he did
    not credibly assert his legal innocence.

    Accordingly, we reject

    Barhams challenge to the disposition of this motion.


    For

    these

    reasons,

    we

    affirm

    the

    district

    courts

    denial of Barhams motion to withdraw his guilty plea and the


    criminal judgment.
    facts

    and

    materials

    legal
    before

    We dispense with oral argument because the

    contentions
    the

    court

    are

    adequately

    and

    argument

    presented

    would

    not

    in

    the

    aid

    the

    decisional process.
    AFFIRMED

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